Law of never per cipal Law. The Law of Nations and Municipal Law differ, secondly, regarding the relations they regulate. Municipal Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals. International Law, on the other hand, regulates relations between the member States of the Family of Nations. The Law of Nations and Municipal Law differ, thirdly, with regard to the substance of their law: whereas Municipal Law is a law of a Sovereign over individuals subjected to his sway, the Law of Nations is a law not above, but between Sovereign States, and therefore a weaker law.1 § 21. If the Law of Nations and Municipal Law differ as demonstrated, the Law of Nations can neither as a se Muni- body nor in parts be per se a part of Municipal Law. Just as Municipal Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Municipal Law. If, according to the Municipal Law of an individual State, the Law of Nations as a body or in parts is considered the law of the land, this can only be so either by municipal custom or by statute, and then the respective rules of the Law of Nations have by adoption 2 become at the same time rules of Municipal Law. Wherever and whenever such total or partial adoption has not taken place, municipal courts cannot be considered to be bound by International Law, because it has, per se, no power over municipal courts. And if it happens that a rule of Municipal Law is in an indubitable conflict with a rule 1 See above, § 9. 2 This has been done by the United States. See The Nereide, 9 Cranch, 388; United States v. Smith, 5 Wheaton, 153; The of the Law of Nations, municipal courts must apply the former. If, on the other hand, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly being adopted by Municipal Law, municipal courts cannot apply such rule of the Law of Nations. Rules of cessitated dicted. § 22. If Municipal Courts cannot apply unadopted Certain rules of the Law of Nations, and must apply even Municipal such rules of Municipal Law as conflict with the Law Law ne of Nations, it is evident that the different States, in or interorder to fulfil their international obligations, must possess certain rules, and must not have certain other rules as part of their Municipal Law. It is not necessary to enumerate all the rules of Municipal Law which a State must possess, and all those rules it must not have. It suffices to give some illustrative examples. Thus, on the one hand, the Municipal Law of every State must, for instance, possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punishment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Municipal Law of every State is prevented by the Law of Nations from having rules, for instance, conflicting with the freedom of the high seas, or prohibiting the innocent passage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Municipal Law as it is prevented from having by the Law of Nations, or if it does not possess such Municipal rules as it must have according to the Law of Nations, it violates an international Presumption against conflicts between Inter national legal duty, but its courts cannot by themselves alter the Municipal Law to meet the requirements of the Law of Nations. § 23. However, although Municipal Courts must apply Municipal Law even if conflicting with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations and Muni- is based upon the common consent of the different cipal Law. States, it is improbable that a civilised State should intentionally enact a rule that conflicts with the Law of Nations. A part of Municipal Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as essentially not containing such conflict. Presump tion of Existence of certain necessary Rules. § 24. In case of a gap in the statutes of a civilised State regarding certain rules necessitated by the Law of Nations, such rules ought to be presumed by the Municipal Courts to have been tacitly adopted by such Municipal Law. It may be taken for granted that a State which is a member of the Family of Nations does not intentionally want its Municipal Law to be deficient in such rules. If, for instance, the Municipal Law of a State does not by a statute grant the necessary privileges to diplomatic envoys, the courts ought to presume that such privileges are tacitly granted. Presump tion Existence Municipal Con § 25. There is no doubt that a State need not of the make use of all the rights it has by the Law of of certain Nations, and that, consequently, every State can by its laws expressly renounce the whole or partial use of such rights, provided always it is ready to fulfil such duties, if any, as are connected with these rights. granted by However, when no such renunciation has taken Nations place, Municipal Courts ought, in case the interests of justice demand it, to presume that their Sovereign has tacitly consented to make use of such rights. The Law of If, for instance, the Municipal Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their Sovereign has tacitly consented to that wider range of its jurisdiction. of the A remarkable case illustrating this happened in Case this country in 1876. The German vessel "Franconia," "Franwhile passing through the British maritime belt conia." within three miles of Dover, negligently ran into the British vessel "Strathclyde," and sank her. As a passenger on board the latter was thereby drowned, the commander of the "Franconia," the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Reserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.1 To provide for future cases of such kind, Parliament passed, in 1878, the "Territorial Waters Jurisdiction Act." 11 2 ' L.R. 2 Ex. Div. 63. See Phillimore, I. § 198 B; Maine, pp. 39-45. See also below, § 189, where the controversy is discussed whether a riparian State has juris diction over foreign vessels that 2 41 and 42 Vict. c. 73. Range of Dominion of International Law con V DOMINION OF THE LAW OF NATIONS Lawrence, § 44-Phillimore, I. §§ 27-33-Twiss, I. § 62-Taylor, § 26. Dominion of the Law of Nations is the name given to the area within which International Law is applicable-that is, those States between which troversial. International Law finds validity. The range of the dominion of the Law of Nations is controversial, two extreme opinions concerning this dominion being opposed. Some publicists' maintain that the dominion of the Law of Nations extends as far as humanity itself, that every State, whether Christian or nonChristian, civilised or uncivilised, is a subject of International Law. On the other hand, several jurists 2 teach that the dominion of the Law of Nations extends only as far as Christian civilisation, and that Christian States only are subjects of International Law. Neither of these opinions would seem to be in conformity with the facts of the present international life and the basis of the Law of Nations. There is no doubt that the Law of Nations is a product of Christian civilisation. It originally arose between the States of Christendom only, and for hundreds of years was confined to these States. Between Christian and Mohammedan nations a condition of perpetual enmity prevailed in former centuries. And no constant intercourse existed in former times between Christian and Buddhistic States. But from about 1 See, for instance, Bluntschli, § 8. 2 See, for instance, Martens, § 41. |